Expert advice:

MHB has collected advice from surrogacy professionals in the USA and beyond. Note, however, that the situation is very fluid, differences exist between various regions and circumstances, and verifying new information is often challenging. We therefore highly recommend seeking the advice of professionals before you take any action based on this information alone. 

Entering the USA:

Even if you're able to secure travel to the USA right now, as long as restrictions exist on the entry of those who are not citizens or permanent residents, your entry will depend on your ability to invoke an exception to those who have an American family member - known as 2(a)(iii) permission to travel. You may be able to invoke this exception by claiming that you are the parents of your child either legally and/or genetically. If your child isn’t born yet and is in a pre-birth order state, you can theoretically argue that for all intents and purposes, you have a child here and therefore should be able to travel into the country. Note, however, that recent reports from such attempts indicate that this is decided on a case-by-case basis, and if done recklessly may lead to cancelation of your visa. However a pre-birth order is more likely to provide entry once the baby is born. If you are in a post-birth order situation and there is a genetic link between you and your baby, an alternative is obtaining an affidavit from the doctor stating that there is a genetic connection in order to prove that you have a genetic child in the US. Ask your attorney to write a letter explaining relationship to your child with the pre-birth order and/or affidavit and passports attached.

The application is done at the US embassy in the IPs home country, and they will collect the information and send the request to Washington, where it will be decided. There are reports that the State Department may be receptive to the argument that allowing the parents to arrive in advance of the birth is in the "national interest" - to prevent the hospital resources from being diverted to taking care of the babies in the absence of their parents.

Needless to say, all of these conditions are subject to change and we expect continued uncertainty in regards to international travel. Therefore  continue to follow new guidelines as they are being issued. If travel is already booked, check with the airlines if flights are on schedule. Refer to the CDC page on travel for updates.  Consult with your lawyer about documents needed to meet requirements for travel and stay informed on government office closures and reduced hours.

If you are granted a visa under the exception clause, it will likely be a special R visa class B1 or B2 for 90 days - regardless of any visa waiver status you may be eligible for in normal times.

Securing alternatives in case you are unable to arrive in time for the birth:

If you are not able to be there for your child's birth, you must contact your lawyer to fill out appropriate paperwork to appoint a temporary guardian. Professionals in the field have recommend first reaching out to local family or trusted friends. In some cases, a last resort would be a private foster care arrangement. Regardless, our legal experts do not recommend involving the formal US foster care system. One alternative to consider is an organization called Safe Families for Children. They have families that were already screened and possess the required insurance to take care of children temporarily. It is a faith-based organization, but they seem to be willing to help anyone. We've heard of some reports that due to the pandemic some of their branches are reluctant to accept new children, and also that some may be overwhelmed by the need to care of children that experience unsafe home environments. But this may vary from one location to the next.

In addition, a large group of surrogacy professionals that are ready and willing to step in and provide care for a newborn if called to do so. You can see a map and a list of these people at this link. And of course your agency or Men Having Babies can help in finding someone.

Note however, that there is a consensus among professionals is that it is inappropriate to ask your surrogate to be the temporary guardian, even if she offers to do so. We do not want to put them in uncomfortable situation emotionally, and there may be difficult legal implications as well.

Attorney Marla Neufeld suggests you ensure whomever you have chosen as a temporary guardian has the contact information of your surrogate and vice versa. You also need to discuss important pre- and post-birth topics to ensure all parties know your wishes. This includes medical care for your baby, will he/she receive the recommended shots and treatments, if a boy will he be circumcised, can the baby be placed on life support, and any other health care decisions that may need to be made, especially if they differ from typical US hospital protocols.

Entering the hospital:

There are severe restrictions on who is allowed to enter hospitals all throughout the United States due to COVID-19. However, the particular restrictions depend on the particular state and decrees for each jurisdiction. In many cases, hospitals are not allowing anyone in except immediate patients as a precautionary measure. This means that even if you are able to travel to the hospital, you unfortunately may not be able to attend the birth of your child. Other hospitals are restricting visitors only if they come from high risk areas. Please contact your hospital and inquire about their specific policies.

In the case that you are not allowed to attend the birth, there is unfortunately little you can do to dispute this. You may be able to explain your situation if you are the genetic parents of the baby. However, numerous professionals in the field have stressed that the most important thing to remember is to respect the hospital staff as they are under a lot of pressure and their policies are aimed at keeping everyone healthy. If you are in a pre-birth order state, you will most likely be allowed to take your baby immediately after the birth because you are the legal parent(s). If you are in a post-birth order state and are denied entry to the hospital, you may have to wait until the baby is cleared to leave the hospital because you have no legal claim over it until all the documents are signed, which may take a couple of days. Please consult your attorney as well as the hospital regarding specifics on this procedure as it may vary from jurisdiction to jurisdiction.

Returning to your home country:

Once your baby is born, the documents you will need in order to travel from the US back to your home country will include a birth certificate and then an American passport or a passport / travel documents from your own country. However, many government offices are closed to the public  and/or have limited hours of operation and limited staff processing matters. Birth certificates and passports are going to take much longer than before because of this. Formally, new restrictions severely limit the issuing of American passports, and the only hope here would be petitioning with the State Department on a case by case emergency basis. The requirement is currently to show that this is a "life-or-death situations." Some attorneys have tried to argue that this should apply as international parents may be unable to secure adequate health insurance or safer living environment for the babies. Lastly, the possibility of the parents being forced to leave the country when their visas expire (see below) may also be invoked as cause for emergency. 

In addition, your access to the offices that may still be open could also be affected by quarantine requirements or prohibition of access to foreign nationals. Some expedited passport offices (such as ones in NY and Atlanta) have been shut, and parents need to apply in nearby states. 

Another consideration would be the choice between expedited and standard passport application. It is currently estimated that the standard path may take 8-12 weeks, and it may be impossible to resort to the expedited route once an application has been submitted. Therefore some attorneys suggest that if the path for expedited passport id blocked, you may be better off waiting for the resumption of passport offices rather than apply on the standard path. 

An alternative would be to reach out to your embassy or consulate in the US to request a passport from your home country or travel documents called a laissez-passer. This can be done in parallel to applying for a USA passport. However, attorney Rich Vaughn warns that "parents must be prepared for yet another obstacle in this regard, as many countries have shut down consulates in response to the pandemic." And you would still need to attain a birth certificate or other documentation of your parenting status.

In the case of the UK, for example, if either of the IPs are British, and named in the birth certificate or court order, then the UK government will issue an emergency UK passport for a surrogate-born child during the current crisis. However, the British attorney Natalie Gamble states that "Given the complexities of UK law around surrogacy and nationality, each case is looked at individually. The Home Office must first either confirm or grant British nationality for your child, and the Passport Office will then authorise the British consulate to issue an emergency UK passport. The process takes at least a week in practice, if managed efficiently."

Extending your visa:

Given the obstacles on leaving the USA (see above), attorney Molly O’Brien advises that "parents need to be prepared to stay in the United States longer." This is also true for those who arrived early in order to avoid the travel ban. In this case you need to be aware of the risk of overstaying the duration allowed by your entry visa. That duration and steps you can take to extend it will vary depending on your home country and the particular visa you have. 

Citizens of 39 countries that are part of the visa waiver program normally receive ESTA visa for 90 days. If you are already in the country and run the risk of going over this time frame, you may be eligible for a grant of "satisfactory departure" in the event of an emergency situation. These may have to be requested at the Customs and Border Protection (CBP) website or at the port of entry as USCIS office are closed. Note also that we are advised that new policies are developed continually and some of the information you find online may be outdated. Therefore it is a good idea to speak your surrogacy attorney or an immigration attorney they will be able to suggest.

Advocacy:

In collaboration with several major organizations, MHB drafted several letters  to American policymakers on excluding expecting surrogacy parents from the COVID-19 travel ban to the USA, and urging them to issue emergency passports to the newborns. The letter calls upon the leaders of several key committees at the Senate and House of Representatives to adjust current regulations to recognize the need of prospective parents to arrive at least several weeks in advance of the expected birth of their children, and recognize the medical necessity of allowing them to return to their home countries before they overstay their visas and where the babies will be fully covered by health insurance and in a safer permanent environment. 

The letter states that the simple solution is to "allow prospective surrogacy parents into the country well in advance by recognizing travel for the birth of a surrogacy child as essential (as Canada has already done), and to recognize that issuing passports for the newborns should fall under the emergency exclusions that already allow this in life-or-death situations in the United States... The current situation is not aligned with the best interests of any party, nor are they in the interest of public health. It is causing confusion, stress, and undue medical risks."

Since the letter was sent on April 2, 2020, MHB and allies have been attempting to contact additional officials and plead with them to act.